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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Kenneth M. Zeran v. America Online, Inc.

958 F. Supp. 1124 (E.D. Va. March 21, 1997)(Ellis, J.) aff'd. 129 F. 3d 327 (4th Cir. Nov. 12, 1997), cert. denied, 524 US 937 (1998)

An unknown individual posted on a bulletin board operated by defendant America Online Inc. ("AOL") a series of notices advertising the sale of t-shirts and other items with slogans glorifying the bombing of the Alfred P. Murrah Federal Building in Oklahoma. The notices stated that the merchandise could be purchased by calling the plaintiff at the telephone number posted on the notice. Plaintiff, who had no involvement whatsoever in the posting of these notices, was bombarded repeatedly with unflattering telephone calls and threats on his life by people who found the notices to be in extremely poor taste.

Plaintiff informed AOL that he was not involved in these unauthorized notices, and asked that AOL both remove them and take steps to prevent reposting. Despite removal, the notices were reposted on numerous occasions in an approximately three week period.

Plaintiff sued "AOL for negligence, under the theory that distributors of information are liable for the distribution of material which they knew or should have known was of a defamatory character." The Court held that this state tort was preempted by the Communications Decency Act, which granted AOL immunity from prosecution for negligence in connection with the posting of statements made by others. As a result, the court granted AOL's motion for judgment on the pleadings.

In reaching its conclusion, the court determined that the CDA did not preempt the entire field of state regulation of interactive service providers. "To the contrary, Section 230(d)(3) [of the CDA] reflects Congress' clear and unambiguous intent to retain state law remedies except in the event of a conflict between those remedies and the CDA."

The court did find, however, that because the state law tort of distributor liability conflicted with the federal CDA, it was preempted. Section 230(c)(1) provides that "[no] provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The court held that this grant of immunity applied to common law distributor liability.


"Distributor liability, or more precisely, liability for knowingly or negligently distributing defamatory material, is merely a species type of liability for publishing defamatory material. ... Properly understood, therefore, distributor liability treats a distributor as a "publisher" of third party statements where that distributor knew or had reason to know that the statements were defamatory. It follows that [plaintiff's] attempt to impose distributor liability on AOL is, in effect, an attempt to have AOL treated as the publisher of the defamatory material. This treatment is contrary to Section 230(c)(1) of the CDA and, thus, [plaintiff's] claim for negligent distribution of the notice is preempted."

The court further held that such a claim conflicts with the purposes behind the CDA, which were to "encourage the development of technologies, procedures and techniques by which objectionable material could be blocked or deleted either by the interactive computer service provider itself or by the families and schools receiving information via the Internet." Such a purpose is frustrated by imposing distributor liability on information service providers.

Lastly, the court held that the CDA was to be retroactively applied to cases where the cause of action arose prior to the enactment of the statute, but a lawsuit asserting such claim was not commenced until after the statute's effective date. Left for another day is whether suits asserting such claims that were commenced before the enactment of the CDA are similarly barred.

The full text of this decision can be found on a web site maintained by David J. Loundy.

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